Be patient!Any clarity that will come from this case
will come when we get to the end, not at the beginning.

Review

We’re got two lawsuits: Mitchell
v. Neff, and Neff v. Pennoyer.

Mitchell won the first
judgment by default.Mitchell has Neff’s
land sold and takes the money.Pennoyer
bought the land.

Neff sues Pennoyer for his
land.The issue is whether the original
lawsuit is valid, and in turn whether the service of process by publication was
valid.

Pennoyer seems to be the good
guy that got screwed!He’s bitter until
his death and makes denouncements about the Supreme Court until he fades into
the obscurity of history.

It’s best not to dwell on
the factual detail of what happens in the lower court.There were lots of complaints lodged against
what happened in the first lawsuit.Neff
alleged five different errors.But the
court doesn’t rely on this when it constitutionalizes jurisdiction.In fact, it ignores those defects.

Could Pennoyer sue the
state?The state has sovereign immunity.What about the sheriff?That government actor would be cloaked
with immunity, too.

What about attachment
and attachment before the lawsuit?

Issue:When does a state have appropriate
jurisdiction over an out-of-state defendant?

When is constructive notice
appropriate?

Some terms you need to
know

In rem – an in rem is an action where the court is
trying to decide the rights in a piece of property itself (in the
thing).E.g. a probate of an
estate.When someone dies, there’s an
estate and the probate of that estate tries to determine the rights of everyone
in the world to the rights of that estate.Another example: admiralty (boat) law.In admiralty actions, you sue in the name of the boat (in the name of
the thing).Also, eminent domain
actions are in rem, where the government comes in and takes property
against the rights of all others in the world.

In personam – This is also known as personal jurisdiction.This has to do with jurisdiction over a
person and their personal rights and liabilities.

Quasi in rem – determines the rights of a person in a thing.Not the rights of the world in a
thing, but the rights of specific individuals in a thing.E.g. foreclosing a mortgage is quasi in
rem…not determining the rights of the world in a piece of property, but
rather disputes between two people: the lender and the borrower.There might be others who could have
interests too.Another example: specific
performance, making you live up to a bargain you made in a contract (c.f.
the famous Stradivarius case).

More complications!

Two kinds of quasi in rem:

1.True
quasi in rem: trying to secure a preexisting claim in the property, or
extinguish someone else’s.

2.Substitute
for personal jurisdiction where you apply a defendant’s property to satisfy a
claim that is unrelated to property.

Right up to today, you’ll
find court opinions that talk about in rem actions that are really quasi
in rem.That’s the case in the
opinion in Pennoyer.

When people say in rem,
a lot of the time their really talking about quasi in rem.

Later on, most of this stuff
collapses in our modern constitutional concepts.But…Pennoyer’s never been overruled by
the Supreme Court.

“We will see the dead hand
of Pennoyer reach up through the ground and bite us!”

Personal jurisdiction includes all this stuff (even though in rem is
really a different thing).But sometimes
people talk about personal jurisdiction and mean in personam only.

Publication Service

When is publication service
okay according to Justice Field?In an in
rem action.There’s nothing
inherently wrong with constructive service by publication.

Why?Will the defendant have knowledge of the
service?

Field says that it’s assumed
you’re in possession of your property.This is a very 19th century mentality.Generally speaking, this is a pretext
though.It’s probably a fluke if they
ever see this notice.

Really, in rem can
apply only if the property is attached first.

Field’s Vision of Power
and Jurisdiction

It’s a little bit different
than a 21st century view of these issues.

Field has a very black and
white vision of the world.Field says
that a state has power over people and property in that state.(Some say “territorial jurisdiction”.)

But…a state has no power
over stuff outside its borders, neither people nor property.So things courts in my state do to people and
property outside of the state aren’t valid until there was some mechanism
by which the courts got power over them in the first place.

Jurisdiction under Pennoyer

The land must be attached
before the first suit started, because that gets you the (quasi) in
rem jurisdiction over it.If you don’t
get the property attached, you don’t have power over it.

The alternative is to serve
Neff personally in Oregon.

That’s all Pennoyer
tells us!

Under these facts, there’s no
way Mitchell could have gotten jurisdiction except to trick Neff into coming
into Oregon to serve him process.

The mobility of the American
population will lead to our modern “contacts” view of personal jurisdiction.

Collateral attack – means you start a second suit to challenge the
judgment of the first suit.

Could Mitchell have
personally served Neff in a different state?No…the process of a state can’t go into another state and order those
people to appear.A state only has power
over people and things within the state.

This is why you can use
collateral attack.You can ignore the
judgment in the first lawsuit if you haven’t been served.You live to fight another day.

But if you make an
appearance, the court may decide it has jurisdiction over you.If you make a “special appearance”, they can’t
“gotcha” you.

In collateral attack, you
wait for them to come and get your property, but then you argue: “They can’t
have my property!The first lawsuit wasn’t
valid because they didn’t have jurisdiction!”

Why use collateral attack
from a strategic standpoint?It’s
cheaper than hiring an out-of-state lawyer to argue on your behalf.If that state tries to enforce the judgment,
they’ll have to try to enforce it in your state.

The merits issue: if you take
a default in the first case, you never have a chance to argue on the merits,
i.e. whether or not that debt was really owed.